...So Help Me...GONE?
The presidential oath is embedded within Article II, Section 1, Clause 8, and reads as follows: "I do solemnly swear that I will faithfully execute the Office of the President of the United States, and will to the best of my ability, preserve, protect, and defend the Constitution of the United States." Notice that any reference to a supreme being of any sort is notoriously absent. Moreover, Article 6, Section 3, prohibits any form of religious test for federal office.
Popular myth portrays George Washington as the standard-bearer of the "so help me God" language inserted at the end of the oath, but historians dispute this claim. Lacking any evidence that the Father of the Country made this reference, they instead credit Chester Arthur, who took the oath on September 22, 1881, and according to the New York Times, made these famous four words both famous and controversial.
Newdow's case is complicated by the case law in the area. One must begin with the question of whether or not he has standing to sue, as he was denied on this front in the aforementioned Pledge of Allegiance case given that he does not have parental custody over his daughter. In this instance, the more recent Hein v. Freedom From Religion Foundation decision dismissed a suit challenging Establishment Clause violations by the executive branch, and by implication this also applies to the judicial branch as only Congress is implicated on these grounds. In his lawsuit, Newdow actually targets Roberts of the judicial branch, so this distinction is important.
If Newdow's claim is deemed worthy of consideration, the Lemon Test enters the fray once more. The three-pronged test reads as follows:
1. The statute must have a secular purpose.
2. Its primary effect can neither advance nor inhibit religion.
3. The statute cannot foster "excessive entanglement" with religion.
In this instance, as articulated above, we are not even dealing with a statute, but instead a historic add-on to an oath cemented in our foundational document. However, ceremonial celebrations of religion have been addressed by the Supreme Court, most importantly in the 1983 case Marsh v. Chambers. The facts center on the Nebraska legislature and a daily prayer at the beginning of activities each day delivered by a paid chaplain. A long-serving member of the chamber filed suit, and the 8th Circuit Court of Appeals deemed this practice an Establishment Clause violation.
The Supreme Court took the case on appeal, and overturned the ruling by a 6-3 margin. Chief Justice Warren Burger wrote for the majority, and cited history as the primary justification for the continuance of legislative prayer, for the Continental Congress, followed by the First Congress, engaged in a similar practice. Indeed, the latter body institutionalized prayer three days before adopting the language of the Bill of Rights. Moreover, given that the Nebraska legislature was composed of adults, and that the prayers were invoked merely in the country's Judeo-Christian tradition, this was not a "real threat," but instead a "mere shadow."
The minority thought otherwise, led by Justice William Brennan, who found the Nebraska prayer in violation of all three rungs of the Lemon Test. He contended that state-sanctioned prayers violated the separation of church and state, along with the principle of neutrality. Additionally, it infringed upon an individual's right to conscience, threatened the "essential autonomy of religious life," "trivialized" religion through its intermixing with government affairs, and stirred religious tensions in this arena.
I would argue that there is certainly a distinction between the Marsh and most recent Newdow case, and this centers on the act that the latter practice is not legally institutionalized. In a sense, by stating "so help me God," Obama and his predecessors are exercising their religious freedom, as this is also protected by the First Amendment. In my mind, this is little different than president's tendency to say "...and God bless America" at the end of major speeches. He is not obligated to do so, but tradition, and perhaps his religious faith, dictates these actions.
Newdow's lawsuit will likely fall on deaf ears, but Obama's speech will be heard by tens of millions. Regardless, that the First Amendment enters the fray at this historic moment is yet another indication of the timelessness of the freedoms it protects, and as a result, the controversies it propagates.